Equal Employment Opportunity Commission v. Nestle Prepared Foods, No. 5:2011mc00358 - Document 19 (E.D. Ky. 2012)

Court Description: MEMORANDUM OPINION & ORDER: (1) ACCEPTING IN PART & REJECTING IN PART Mag Judge Wier's 17 Report and Recommendations; (2) that the EEOC's 1 Motion for enforcement of subpoena is DENIED; (3) this order is final & appealable. Signed by Judge Joseph M. Hood on 5/23/12.(KJR)cc: COR

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ) ) ) ) No. 5:11-mc-358-JMH-REW ) ) ) ) MEMORANDUM OPINION AND ORDER ) ) ) Petitioner, v. NESTLE PREPARED FOODS, Respondent. ** This matter ** is ** before ** the ** Court upon Disposition of Magistrate Judge Robert E. Wier. the Recommended [DE 17]. Said action was referred to the Magistrate Judge for the purpose of evaluating the Equal Employment Opportunity Commission s ( EEOC or Commission ) motion to enforce an administrative subpoena. [DE 1]. Having considered the parties briefs, an amici curiae brief filed in support of Nestle, and the parties arguments during a show cause hearing, Magistrate Judge Wier recommends that the EEOC s granted. Disposition. motion for has filed Nestle [DE 18]. enforcement of objections to the the subpoena be Recommended The Court has carefully considered this matter and concludes that it will accept and adopt in part the Magistrate Judge s recommendation. largely well-reasoned and articulated Ultimately, however, the Court finds that the information sought by the EEOC is not relevant to the specific charge at issue, and thus, the administrative subpoena will not be enforced. I. BACKGROUND The undisputed facts relevant to the Court s resolution of this matter are as follows: On June 8, 2010, Nestle sent its employee, a Michael Peel, to private physician, McLaughlin, for a fitness-for-duty evaluation. Dr. Paul As part of the evaluation, Dr. McLaughlin had Peel fill out a family-medicalhistory questionnaire concerning his family in which history Peel of provided certain medical information conditions. Peel s employment with Nestle was terminated later that month, purportedly shifts. because Peel took excessive breaks during work Peel filed a charge of discrimination with the EEOC on June 29, 2010, alleging that Nestle had discriminated against him based on information. retaliation, disability, and genetic In the narrative portion of Peel s EEOC charge, he did not discuss the particulars regarding his allegation of genetic information discrimination, but it has become clear that that portion of the charge relates to Dr. McLaughlin s acquisition of Peel s family medical history. Based on Peel s allegation of genetic information discrimination, the EEOC issued Subpoena No. IN-11-51S, which directs Nestle to produce: 2 1. Documents that show the full name, address, and telephone number of each physician to whom Nestle referred individuals for physical or medical examinations (i.e., fitness for duty exams, post-offer exams) for positions at the facility from January 1, 2010 to the present. 2. Documents that show the full name, date of application, if hired, date of hire, if not hired, reason(s) why, and if terminated, reason(s) for termination for each individual who submitted to a physical or medical examination at Nestle s request for positions at the facility from January 1, 2010 to the present, as well as the date of each exam and the name of the physician who conducted the exam. 1 Nestle refused to produce the requested information and filed a petition to revoke the subpoena. refused the Commission s request that it After Nestle withdraw its petition to revoke, the Commission denied the petition and ordered Nestle to comply with the subpoena. When Nestle did not comply, the Commission filed the application for enforcement that is currently before the Court. II. STANDARD OF REVIEW Federal with respect Rule to of Civil dispositive Procedure motions, 72(b)(3) that the provides, district judge must determine de novo any part of the magistrate judge s disposition to which proper objections have been made. Because the EEOC s motion to enforce the subpoena sets forth all of the relief requested in this matter, the 1 The EEOC originally requested information that included copies of all medical questionnaires completed by individuals who submitted to medical exams. See DE 8-5. Nestle objected and the EEOC ultimately narrowed the scope of its request, issuing Subpoena IN-11-51S on June 30, 2011. 3 Court views it as a dispositive motion and will, therefore, review de novo the portions of the recommended disposition to which Nestle has objected. See Aluminum Co. of America, Badin Works, Badin, N.C. v. U.S. Envtl. Prot. Agency, 663 F.2d 499, 501 (4th Cir. 1981); see also EEOC v. Schwan s Home Serv., 707 F. Supp. 2d 980, 987 (D. Minn. 2010)( [A]n application to enforce an administrative subpoena duces tecum, where there is no pending underlying action before the Court, therefore, is when application, generally a the a dispositive Magistrate district Judge court matter, considers reviews the such and an Magistrate Judge s determinations de novo. ) III. DISCUSSION Nestle raises several objections to Magistrate Judge Wier s contends recommended that the disposition. Magistrate Specifically, Judge erred in Nestle failing to consider the merits of the EEOC s agency argument and in finding that Nestle had notice of its obligations under the Genetic Information U.S.C. ยง 2000ff-1. Wier s findings relevance. Non-Discrimination Act ( GINA ), 42 Additionally, Nestle objects to Judge with respect to judicial estoppel and Upon reviewing these issues anew, the Court finds the Magistrate Judge s opinion to be well-reasoned and adopts the opinion as its 4 own, save the portion addressing the relevance of the information sought under the administrative subpoena. It is well established that the EEOC has broad access to evidence that investigated. is relevant the a charge being See EEOC v. Roadway Exp., Inc., 261 F.3d 634, 637 (6th Cir. 2001). stage, to relevance Further, at the investigation standard is to be construed expansively, afford[ing] the EEOC access to virtually any material that might cast light on the allegations against the employer. EEOC v. Shell Oil, 466 U.S. 54, 68-69 (1984); see also EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205, 206 (6th Cir. 1979). Supreme Court relevance with has And while the United States approved respect to a far-reaching EEOC notion investigations, it of has cautioned that limits must be imposed lest the requirement of relevance become a nullity. Shell Oil, 466 U.S. at 69. Although the relevancy limitation does not prevent the EEOC from investigating subject matter beyond the four corners of a specific charge, see EEOC v. Roadway Exp., Inc., 750 F.2d at 43, the Court is not persuaded that it has free reign to conduct a broad, company-wide investigation based upon a single discrimination. Judge approved allegation of an isolated act of While the cases cited by the Magistrate investigations that 5 reached beyond the charges involved, each case involved articulable circumstances that suggested the existence of violations beyond those specified in the charges. See EEOC v. Cambridge Tile Mfg. Co., 590 F.2d at 206 (EEOC entitled to investigate employer s pattern of action where two employees had filed charges of discrimination and there was a strong uncovered possibility during a of sex discrimination, reasonable investigation which of was specific charges ); EEOC v. Roadway Exp., Inc., 750 F.2d 40 (6th Cir. 1984)(investigation arose out of two separate charges of race discrimination); Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355 (investigation involved seven separate charges of race discrimination, each relating a detailed and identical account of alleged discrimination); EEOC v. Ford Motor Credit Co., 26 F.3d 44 (6th Cir. 1994)(investigation of systemic sex preliminary discrimination on-site permitted investigation, the where, EEOC upon found a scarcity of women occupying high-ranking positions). During the show cause hearing before Magistrate Judge Wier, counsel for the EEOC was questioned regarding the relevance of the information sought. how looking genetic for other information instances would be [DE 10]. of relevant counsel responded: 6 the to When asked acquisition Peel s of charge, Mr. Peel s charge, we feel that there is a violation of the statute in regards to him. And then flowing from there, looking for other class members . . . . [I]f that is their practice, referring employees to physicians for these types of exams without giving any sort of guidance or notice to the physicians that they are not supposed to collect this type of information, it certainly is possible that if it was done towards one employee from one physician that it could be done towards other employees as well; so yes, that is why I want to explore that. [DE 10, p. 7]. When asked by Magistrate Judge Wier what would suggest that systemic discrimination has occurred at Nestle, counsel replied, At this point we don t know. We won t know that until we have the information, and then we can determine whether or not that s the case. interviews have been conducted at this point. No [DE 10, p. 8]. While the Court recognizes that it is important for the EEOC to have the ability to investigate possible patterns of discriminatory action, this does not mean that every charge of discrimination justifies an investigation of the employer s facility-wide employment practices. See EEOC v. Burlington N. Santa Fe R.R., 669 F.3d 1154, 1157-58 (10th Cir. 2012). To conclude otherwise would eviscerate the relevance requirement and condone fishing expeditions, against which the Sixth Circuit has warned. See EEOC v. K- Mart Corp., 694 F.2d 1055, 1066 (6th Cir. 1982). Here, the only alleged GINA violation arose from Peel s EEOC charge 7 in which he checked the box for genetic information. The Court is aware of no other charges against Nestle alleging GINA violations, information it and has the EEOC acquired in points to no the course other of its investigation of Peel s charge that would suggest that any other violations have occurred. Accordingly, the Court finds that the information sought under Subpoena IN-11-51S is irrelevant to the charge being investigated, and the motion to enforce the subpoena is denied. Having considered the matter de novo in light of Nestle s objections, IT IS ORDERED: 1) that Magistrate Judge Wier s Recommended Disposition [DE 17] is ACCEPTED IN PART and REJECTED IN PART; 2) that the EEOC s motion for enforcement of Subpoena No. IN-11-51S [DE 1] is DENIED; and 3) that this Order is FINAL AND APPEALABLE and there is no just cause for delay. This the 23rd day of May, 2012. 8

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